Saturday, March 26, 2011

U.S. District Judge Carl Barbier and lawyers involved in BP oil spill litigation found humor today during a status conference held at federal court in New Orleans.

Barbier questioned attorney Michael Underhill and the progress of testing of the failed blowout preventer (BOP) and drilling cement from the Deepwater Horizon oilrig.

Underhill, who at previous status conferences joked about hiding in the back of the courtroom, said he was pleased to inform the court that the BOP testing was finally completed and a copy of the 200-page report had been given to all parties.

"I haven't seen it," Judge Barbier responded. "I've read news reports about the report, but haven't seen the report itself."

Barbier, who repeatedly stressed the importance of completing the tests for the litigation to continue, also stressed that the concrete testing needs to be completed shortly.

Underhill, who is the court's liaison to a government Joint Investigative Team (JIT) charged with testing the cement, took the comments in stride.

"I've been told if you'd like an honorary hard hat, you're welcome to have it," Underhill said, to laughter.

Barbier joked that he wasn't sure if a free construction helmet would violate gift-giving laws for federal judges and told Underhill to just leave it in an empty courtroom and he'd take a look.

Despite the light mood attached to the discussion, the BOP and cement testing represent some of the most critical aspects of discovery in determining liability for the Deepwater Horizon explosion and Gulf of Mexico oil spill.

On Wednesday, a report issued by JIT stated that a bent drill pipe prevented the BOP from cutting off the flow of oil that led to the Deepwater Horizon explosion.

During the loss of well control, blind sheer rams (BSRs) designed to cut the drill pipe in the event of a blowout were unsuccessful because the "drill pipe elastically buckled within the wellbore," the report states.

The buckling occurred due to pressure which built up before the BOP had a chance to operate.

The report also blames the failure on the BOP itself, stating that "the BOP functionality testing indicated some back-up control system components did not perform as intended."

Former Qwest chief executive Joe Nacchio sued his attorneys Wednesday for negligence and overbilling, including charges for lawyers' underwear purchases.

The lawsuit alleges that attorney Herbert Stern and his New Jersey law firm of Stern & Kilkullen charged unreasonable and inappropriate fees, and were "negligent and careless" in the defense of Nacchio, who was charged with 42 counts of insider trading in December 2005 and convicted on 19 counts in April 2007 after a 21-day trial.

The lawsuit says Stern's firm billed Nacchio more than $25 million for representation in criminal and civil issues. Qwest has covered a portion of Nacchio's legal fees.

The suit also alleges that Stern's firm was "negligent and careless in handling the defense of the criminal action. Among other things, they were barred by the trial court from calling a critical expert witness by virtue of their blatant failure to comply with basic litigation procedures."

Stern could not be reached for comment Wednesday. His law-firm partner, Kevin Kil kullen, who also was named a defendant in the complaint, said Wednesday afternoon that he was unaware of the lawsuit.

"We know nothing about it," Kilkullen said. "No one served it on us." He wouldn't comment further on allegations in the suit.

Stern came into the Nacchio defense with a reputation as a high-powered criminal defense attorney. Earlier in his career, he was a federal judge who presided over an aircraft hijacking case and later wrote the book "Judgment in Berlin," which was made into a movie with the Stern role played by Martin Sheen.

Stern received mixed reviews from legal analysts for his representation of Nacchio in the 2007 criminal trial.

When Nacchio, who is serving a 70-month prison sentence, appealed the conviction to the 10th U.S. Circuit Court of Appeals, one appellate judge wrote in an opinion that "the defense counsel behaved inexplicably, which is to say they performed below the level expected of competent counsel."

However, Denver attorney Anthony Accetta, a former federal prosecutor who observed the Nacchio case, said Stern's work was sound.

"Herb Stern came as close to getting a guilty man acquitted as any lawyer I've ever seen," he said. "To accuse him of negligence is typical of what guilty people do — they always blame someone else."

Accetta said he has no knowledge of Stern's billing practices but said routine travel expenses are appropriate. At times during the trial, as many as seven attorneys represented Nacchio in the courtroom.

"These were out-of-town lawyers who came to Denver to defend him. They were going back and forth from New Jersey," he said. "Billing for meals and an occasional change of clothes is not inappropriate. But I personally would never bill hotel movies to a client."

Nagel said he would offer no detail "at this time" on what kind of underwear purchases were made, which hotel movies were viewed, or any other specifics about the billing.

The seven-page complaint gives no billing breakdown but does say that Nacchio gave the firm a nonrefundable $5 million retainer in November 2005. It also says that after Nacchio's conviction, the firm billed him more than $2 million for work on an appeal, even though a different firm was taking the lead on that effort.

Attorney Rick Kornfeld, another former federal prosecutor who followed the case, said Nacchio's current legal team will be challenged to prove negligence on Stern's part.

Nacchio reported to a federal prison camp in Schuylkill County, Pa., in April 2009. His projected release date is May 2014. He withdrew his final appeal in February.

Tuesday, March 22, 2011

Texas Super Lawyers has honored 43 Haynes and Boone, LLP attorneys in its 2011 Rising Stars edition, which recognizes the top up-and-coming attorneys in the state.

Compiled through peer nominations and research, only two percent of young attorneys in Texas receive the Rising Stars distinction. Selected attorneys are 40 or younger or have been in practice for fewer than 10 years.

In conjunction with its rankings, Super Lawyers issues its annual Rising Stars publication featuring stories on standout honorees. Haynes and Boone Energy Partner Diana Liebmann is featured for her advocacy and regulatory expertise on wind generation and related energy issues.

Haynes and Boone, LLP is an international corporate law firm with offices in Texas, New York, California, Washington, D.C., Mexico City and Moscow, providing a full spectrum of legal services. With about 550 attorneys, Haynes and Boone is ranked among the largest law firms in the nation by The National Law Journal. The firm has been named one of the "Best Corporate Law Firms in America" (Corporate Board Member Magazine, 2001-2009) and recognized as a "Top 20 Law Firm" for culture and for diversity with respect to both women and minorities (Vault, 2011).

A recent bid by former Gov. Rod Blagojevich to have corruption charges thrown out because of a delay in payments to his attorneys was quickly derided by veteran lawyers as doomed to failure.

On Monday, when U.S. District Judge James Zagel began a routine hearing by kindly brushing off the idea, saying he would not formally rule on the motion because it had not even been filed properly, the matter seemed all but settled.

"My guess is it won't be presented, and that means it goes away by itself, vanishes into thin air," Zagel said.

Not so fast.

Some 40 minutes later, as the hearing on other issues was concluding, Blagojevich's attorneys continued to press Zagel for a ruling on the motion to dismiss the charges, telling him they were quite serious about it.

It was then that Zagel made his position even clearer: He didn't believe they had raised any legitimate legal arguments.

"It looks like it was intended for an audience other than the court," said Zagel, suggesting the motion was no more than a publicity stunt.

While Blagojevich's knack for the media spotlight is well-documented, some legal experts said perhaps the unorthodox motion could be an attempt at laying the groundwork for an appeal.

But outside court, Blagojevich's attorneys called the lack of payment a serious threat to his right to a fair trial and stood by their plan to refile the proper paperwork so there can still be a hearing.

"You can't have a lawyer who has no resources," said Lauren Kaeseberg, one of Blagojevich's lawyers.

Blagojevich's defense team is being paid for by taxpayers after the court declared the former governor was unable to afford the sizable legal expenses for the April 20 retrial. Blagojevich tapped out his campaign funds paying for his defense in the first trial last summer.

In the motion filed March 9, Blagojevich's attorneys said they had not been paid for months, citing the ongoing federal budget crisis. They also complained that they could not be ready for next month's retrial. The motion went on to call the retrial an "irresponsible use of taxpayer funds" — echoing an argument Blagojevich's lawyers made in the minutes after the jury verdict in the first trial.

While payments had been suspended nationwide in February and again this month because of potential funding shortfalls, Blagojevich's lawyers have since been paid for the work they have sought payment on, Kaeseberg acknowledged.

But Kaeseberg said Blagojevich's legal team would still go forward with its motion because of continuing concerns that Congress could cut or delay the funding again.

"I think contrary to what everyone thinks, we have a legitimate motion," Kaeseberg said. "The issue is does the federal government have the money to retry this case? … If there is no money in (publicly funded) programs, it's a violation of the defendant's right to a fair trial."

Blagojevich was convicted of one count of lying to the FBI, but the jury deadlocked on the remaining 23 counts.

Sunday, March 20, 2011

Pentagon defense lawyers are protesting a 26-page document that regulates their work at Guantánamo in a similar fashion to the civilian lawyers who are suing on behalf of the captives.

With a new round of Guantánamo prosecutions on the horizon, a senior Pentagon official has ordered war court defense lawyers to sign freshly minted ground rules that not only gag what they can say to their alleged terrorist clients but also to the public.

Retired Vice Adm. Bruce MacDonald issued the 26-page “protective order and procedures” for military and civilian lawyers who already have obtained special security clearances to work at the war court called Camp Justice. The Pentagon provides the uniformed lawyers at no charge to the alleged war criminals, who can also hire other U.S. lawyers so long as they get special security clearances to defend them.

There are currently no active charges at the court, called Military Commissions. But this month, President Barack Obama ended a two-year moratorium on military trials, which made the goal of closing the detention center appear more distant. Attorney General Eric Holder has approved three new prosecutions, notably the likely death penalty case of a Saudi man accused in the 2000 bombing of the USS Cole that killed 17 sailors off Yemen.

Defense lawyers were given until Monday to sign the new rules, prompting a protest by the Chief Defense Counsel Marine Col. Jeffrey Colwell, who said Friday afternoon the Pentagon was delaying implementation. Broadly, Colwell wrote, the document “unreasonably and unlawfully interferes with the attorney-client relationship” between the captives in the Guantánamo camps and American defense lawyers in uniform of their enemy.

Specifically, in one instance, he noted the “absurd” requirement that lawyers tell the military beforehand what language they will speak with the captive.

It suggests “the government is monitoring our communications,” the Marine colonel wrote, “which paragraph 87e says you are not.”

As chief Defense counsel, Colwell is in charge of the pool of lawyers assigned to defend Guantánamo captives accused of war crimes. He earlier was the military attorney of ex-CIA captive Ahmed Ghailani, now serving life in prison at a federal penitentiary in Colorado for his role in al Qaeda’s Africa embassies 1988 suicide bombings.

Some rules appear tailor-made to lawyers defending accused war criminals like Ghailani, who was secretly held and interrogated for years by the CIA before President George W. Bush had “high value detainees” moved to Cuba in 2006.

Lawyers defending former CIA captives must first get special Top Secret clearances from the U.S. intelligence agencies to simply talk to them.

Now paragraph 29, for example, says a lawyer needs the CIA’s blessing simply to ask a captive about a confession the CIA claims he made at a secret overseas interrogation site, before the prisoner ever saw the Red Cross delegate or a lawyer. “Statements of the detainee that detainee’s counsel acquires from classified documents cannot be shared with the detainee absent authorization from the appropriate government agency authorized to declassify the classified information.”

Pentagon sources say the next case to be sworn by the Pentagon prosecutor includes such a captive — alleged Cole bomber Abd al Rahim al Nashiri, whom CIA agents water boarded, reportedly at a secret site in Poland, as well as menaced with a drill near his head and a pistol. Military lawyers not assigned to the Nashiri case said the rules mean his defense attorneys can ask him broad questions — for example, Tell me about your time in U.S. custody before Guantánamo? — but not specifically about any classified documents created while he was at a CIA black site.

Paragraph 31 forbids the defense lawyers from saying, “That’s classified,” as an explanation for why they can’t answer a question.

The Pentagon’s top lawyer, Jeh Johnson, told Congress members Thursday that the order was meant to align the oversight of military lawyers with the “protocol” already imposed on civilian lawyers who travel to Guantánamo to meet captives suing in federal court for unlawful detention.

“As you can imagine, the defense counsels are not to happy about it,” Johnson said, adding that they were given an advanced copy to give them a chance to complain.

Colwell said the military criminal defense lawyers were “extremely troubled” by the new oversight regime.

It does not let an attorney use discretion on what constitutes legal reading material. A Pentagon lawyer gave Guantánamo’s youngest captive, Omar Khadr, a copy of Lord of the Rings some years ago — until guards confiscated it.

Instead, a military lawyer must give mail meant for a client to a “privilege team” to decide whether the captive is entitled to see it.

“It’s going to slow everything down, tie our hands,” said Colwell. “Getting information to our clients is now going to take weeks instead of days.”

Defense attorneys want a Missouri judge to block incriminating statements a teenage murder suspect made to police from being used against her in an upcoming trial.A motion seeking to suppress statements made by Alyssa Bustamante was released yesterday by Cole County Circuit Court, two days after the motion was the subject of a closed-door hearing. The judge has not ruled yet on the motion.

Bustamante was 15 years old when she was charged as an adult in fall 2009 with slaying 9-year-old Elizabeth Olten, a neighbor from a rural town just west of Jefferson City.

She has pleaded not guilty and is to face trial in June.

During a hearing in November 2009, a Missouri State Highway Patrol officer testified that Bustamante confessed to killing the girl and led authorities to her body in a well-concealed wooded area. Sgt. David Rice testified that Bustamante told authorities she wanted to know what it felt like to kill someone.

Bustamante’s attorneys contend the interrogation was coercive for someone of her age, background and physical and mental condition. Their motion to suppress the statements contends she was “subjected to mental and physical duress” and was made promises by the officials conducting the questioning, but it does not elaborate on either assertion.

The motion also contends Bustamante was not advised in clear terms of her right to remain silent, that her words could be used against her or that a lawyer could be present during the interrogation.

Sunday, March 13, 2011

It's harder than ever to get a case before the U.S. Supreme Court. But while the court turns away 99% of 10,000-odd petitions filed each year, there are cases many justices find irresistible: fictitious ones.

Justice Anthony Kennedy came here Jan. 31 to conduct a mental-competency hearing for Hamlet, accused of killing Polonius. Billed as "Justice Anthony M. Kennedy's the Trial of Hamlet," the production featured real-life celebrity lawyers including the deputy district attorney who's prosecuting Lindsay Lohan for shoplifting and, as a bleeding-heart juror, Oscar-winning actress Helen Hunt.

Shakespeare's tragic hero is just one of many literary and historical figures to make the mock docket. Justice Ruth Bader Ginsburg once donned a 19th-century major general's uniform to preside over Col. George Custer's mock court-martial. Justice Samuel Alito has tried Socrates for corrupting the youth of Athens, while Justice Antonin Scalia put Thomas Jefferson and Napoleon in the dock for conspiring to destroy francophone culture in the New World. The trial was conducted mostly in French.

Justice Sonia Sotomayor is the latest to get in on the act. Next month, she'll join Justices Ginsburg and Alito to hear an appeal on a blackmail conviction from Mrs. Cheveley, from Oscar Wilde's "An Ideal Husband."

Unlike many people, some of America's top jurists enjoy spending their off-hours pretending to do their day jobs.

Several justices say the faux trials, which often raise money for causes like the Supreme Court Historical Society and Washington's Shakespeare Theatre Company, provide a convenient excuse for pleasure reading.

"When you're reading all these briefs," says Justice Ginsburg, pointing at a stack of legal filings in her chambers, "it's nice to take time off and read something great or delightful."

The mock cases often are argued by experienced advocates, such as former Whitewater prosecutor Kenneth Starr, and some panels include lower court judges, too.

Participants usually have dinner together before the evening sessions. "I have one, or maybe two, glasses of wine. That would be unthinkable at the real court," says Justice Ginsburg. "It's fun," adds Justice Stephen Breyer. "The arguments are usually presented quite spectacularly."

Last year, conservative Justice Alito joined liberal Justice Ginsburg in affirming Henry V's war-crimes conviction for executing French prisoners of war. While Shakespeare considered Henry a hero, "we applied the 'evolving standards of decency that mark the progress of a maturing society,"' says Justice Alito, referring to a 1958 precedent on cruel and unusual punishments that many conservatives still dispute.

In 2007, former Solicitor General Theodore Olson was defending the title character from Marlowe's "Edward II" when Justice Ginsburg surprised him with a citation rebutting his argument: It was an opinion that Mr. Olson himself had written while working in the Reagan administration.

"There was a gleam in her eye," Mr. Olson says. "She knew that the audience would get it."

For Washington litigator Eugene Scalia, a mock trial was probably as close as he'll ever get to a real Supreme Court case. Until Justice Scalia decided to retry Aaron Burr for treason, "my only chance to argue a case in front of him was at the dinner table," says the 47-year-old Mr. Scalia.

Did the justice pull punches for his son? "Point No. 1: I lost," says Mr. Scalia.

The Supreme Court forbids cameras at real arguments, but mock trials have been videotaped since 1987.

"I think it would be a lot more important to let the public see the court in Bush v. Gore," grumbles former Sen. Arlen Specter, the ex-chairman of the Judiciary Committee who spent years hectoring the justices to televise arguments. "They should leave Hamlet to the high schools."

While most justices are satisfied to be performers, Justice Kennedy is the impresario behind "The Trial of Hamlet." He says he got the idea in the early 1990s, when psychiatrists were revising the definitions of mental disorders. A forensic examination of Hamlet, he figured, could be a teaching device.

"I had the idea that I could write a play, but there are so many different ways to go," Justice Kennedy says. Instead, he devised an improvisational structure where prosecution and defense attorneys would call psychiatric experts to the stand.

Justice Kennedy workshopped the concept 17 years ago in a Supreme Court conference room, and later staged it in Boston and Chicago. After selling out a 2007 performance at Washington's Kennedy Center, the justice pitched it to Ben Donenberg, founder of the Shakespeare Center of Los Angeles.

January's production proved the biggest yet, filling the 1,200-seat Bovard Auditorium at the University of Southern California with tickets selling for $30 to $100.

Hamlet was represented by celebrity lawyer Blair Berk. In preparation, she consulted one of her clients, Mel Gibson, who played the Danish prince in Franco Zeffirelli's 1990 screen adaptation.

Alas, the jury voted 10-2 against the prince, played by Graham Hamilton, seen on HBO's "Big Love."

Chatting before the show, the costumed Mr. Hamilton told Justice Kennedy that Hamlet's "antic disposition" is a ruse rather than a symptom of diminished capacity, Justice Kennedy—often a swing vote on the Supreme Court—wasn't so sure. "I've gone back and forth," he said.

It has taken Iowa's Attorney Disciplinary Board five years and counting to decide what to do about Richard R. Schmidt.

The slow pace doesn't sit well with the Des Moines attorney's ex-wife, whom he choked repeatedly to the point of unconsciousness in front of their three young sons in 2006. Schmidt received a 30-day sentence in jail for his crime.

"Five years is way too long for them (the state disciplinary board) to take action," Jill Schmidt said. "Way too long."

Jill Schmidt was one of several readers who contacted The Des Moines Register after a two-day report last weekend found that the Iowa Supreme Court had revoked the license of only one attorney among 7,200 practicing in the state last year.

The Register reported that attorney discipline in the state can take years, and that it's virtually impossible to determine the scope of legal misconduct in Iowa because the disciplinary system is largely self-policing. The Register also found that a fund set up to help the victims of dishonest lawyers has paid out little in recent years - and nothing at all in cases of legal misconduct, which is on the rise.

The Register's reports on March 6-7 prompted a national advocacy group to call for increased reporting and more transparency in Iowa, and prompted a state commission to decide to speed up consideration of action on behalf of a businessman duped out of more than $33,500 by his lawyer.

It also triggered promises of reforms and swifter action from the director of the judicial branch's office of professional regulation.

"There is room for improvement," said Paul Wieck II. "I think there are some practices used in other states that warrant consideration."

Since publication of the report, several lawyers also have defended the current disciplinary system, warning that no conclusions about attorney conduct can be drawn from the scant number of lawyers - fewer than 30 - who have been disbarred through prosecution since 2000.

Others outside the profession, however, insisted attorneys benefit too much from self-policing.

Jill Schmidt, a local nurse practitioner, said it's unfair that the Supreme Court has published nothing publicly about the case still pending against her ex-husband, though his crime occurred in June 2006. The mother of three said she believes the state's online database of attorney discipline should reflect an attorney's entire disciplinary history.

"And ideally, he should have been limited in what he is allowed to do until a decision is made," she said.

Colin Witt, the judge who sentenced Schmidt, also said he was surprised to hear the lawyer had not yet been disciplined five years after the fact.

The criminal outcome was already controversial. Both attorneys involved worked out a plea agreement. Witt said he rejected the original deal that Polk County prosecutor Mark Sandon and defense attorney F. Montgomery Brown presented him, which called for no jail time and a deferred judgment.

"It was a difficult case," conceded Witt, who ultimately found Schmidt guilty of domestic abuse and first-degree harassment and sentenced him to 30 days in jail. "It was hard to do anything different when both sides asked for the same thing."

Schmidt, who still practices at a law firm on Ingersoll Avenue, said he has no comment about his discipline case while it is still pending before the Supreme Court.

Wieck said one thing he would like to see improved is the amount of time the disciplinary system takes to resolve cases.

A state prosecutor recommended more than a year ago that Schmidt receive a one-year suspension; Schmidt's lawyer has suggested a public reprimand. The state's grievance commission, which hears misconduct allegations, recommended a six-month suspension. The Supreme Court has yet to weigh in.

Brown, the high-profile defense attorney who represented Schmidt in his criminal case, said he didn't believe Schmidt's status as a lawyer has played into his treatment in the state's justice and disciplinary systems.

The commission, he said, ultimately will rule on Schmidt's conduct. Whatever it decides will be public and have an impact, he said.

"In our business, reputation is everything," he said. "I don't think it's the same for other people."

A top official at a national advocacy group said last week that Iowa should adopt more best practices proposed by his group to better inform consumers.

Rodd M. Santomauro, executive director of Help Abolish Legal Tyranny, or HALT, said the group has fought for more than three decades for improvements in attorney discipline systems to prevent the type of lawyer misconduct outlined in the Register's report.

Santomauro said the state should follow the lead of other states and abolish private admonishments altogether. It also should allow more nonlawyers to participate on panels that decide attorney misconduct cases, and disclose a lawyer's complete disciplinary history so that consumers can make informed decisions about which attorney to hire.

"When you don't have a fully open disciplinary system, how is the public to know a lawyer is not in good standing?" he asked.

Santomauro said most people don't realize that Iowa and most states do not require lawyers to carry legal malpractice insurance. That's a problem, since the state's Client Security Fund will not reimburse clients for legal malpractice, the leading reason for misconduct complaints, he said.

"Our organization is pro-consumer, not anti-lawyer," he said. "Practicing law is a privilege, not a right. When it comes to lawyers, there is a heightened degree of expectations from the public. It's a job that comes with a lot of benefits and a lot of responsibility."

If Iowa lawyers do not carry malpractice insurance, they do not have to disclose that fact, unlike lawyers in other states.

Wieck said he believes the state should consider requiring lawyers to carry professional liability insurance and report malpractice claims against them.

"I would like to be able to tell you the majority of them do (carry the insurance), and I believe that's true, but I can't say for sure," he said.

Wieck cautioned that discipline taken by the judicial system does have serious repercussions. If those reviewing allegations find a preponderance of evidence, attorneys can receive private admonishments, public reprimands, suspensions or disbarments.

"Even for a private admonition, the first thing you have to do is contact your malpractice carrier and notify them," he said.

Wieck said it's unlikely the state will begin making private admonishments public, as Santomauro advocated. He said private admonishments eventually do become public if attorneys are disciplined publicly later for similar reasons.

"I think there's a balance that has to be achieved between what information the public needs versus the damage that can be done to a lawyer's reputation," Wieck said.

Lawyers also caution that cases take time because of the busy schedules of those who serve on the state's discipline and grievance commissions and because of the need to uphold the due process rights of accused attorneys.

That said, many attorneys said they would not object to a requirement to report malpractice lawsuits filed against them as well as damages and restitution, as is currently required of Iowa doctors.

Paul Scott, who serves on the grievance commission, said he wanted to remind the public that attorney misconduct and malpractice are not the same thing.

"One might follow the other, and often that's what gets lawyers in trouble," he said. "But not all malpractice equals misconduct. ... The farther you spread your tentacles, the more likely you will be spreading them into pools where you can make a mistake."

Attorneys for Ray Lemes, whose murder trial was derailed when a member of his jury was found to have conducted outside legal research, said Thursday the errant juror should be held accountable — with a fine or possibly even jail.

Lemes had been on trial for five days for the 2007 shooting death of a college student in the street in front of his home, and the jury had been deliberating for almost seven hours when the foreman sent a note to state District Judge Lori Valenzuela stating that one member had independently looked up the legal definitions of murder and manslaughter.

Judges always warn jurors before and during trials that outside research is prohibited. Valenzuela granted the defense's motion for a mistrial.

Defense attorney Michael Sawyer said immediately after the mistrial that the unidentified juror probably meant well. But on Thursday, a starkly different tone emerged in a motion for contempt of court filed by his co-counsel and brother, Joe James Sawyer.

“To allow this juror to ... violate the court's orders and instruction without punishment will send a message to every juror that they can improperly influence or prevent judicial process and that there are no consequences to said activity,” the filing states.

The Sawyers asked that an arrest warrant or summons be issued for the juror to appear at a contempt of court hearing. The attorneys plan to ask that the juror be sent to jail or fined $25,000 to help defray Lemes' costs at the eventual murder retrial that both they and prosecutors expect.

At a minimum, the Sawyers asked for the juror's name so they can file a civil suit.

“I'm furious,” Joe James Sawyer said. “My client may have to sell his house to secure a defense team again. I've never had this happen before. I'm determined to never see this happen again.”

First assistant district attorney Cliff Herberg declined to say whether his office would support a contempt request. If the juror is fined, however, the judge might have a different view of how the money should be used, he said, pointing out that taxpayers also lost money.

Jury pay for the five-day trial was about $2,000. There are also costs of flying witnesses in from out of town and paying police officers overtime to testify.

Valenzuela has not ruled on the motion or indicated whether she will entertain a hearing on the matter.

“I'm just disappointed,” she said Thursday. “I'm not angry, but it violated (Lemes') right to a fair trial, and it violated the integrity of the entire system.”

Judges have the ability to impose sentences of up to 6 months in jail for contempt of court.

While it would be surprising if Valenzuela ordered a $25,000 fine, such mistrials can pose serious risks to a defendant, said St. Mary's University law professor Geary Reamey.

“The defense would cost at least in the tens of thousands of dollars just for the attorneys fees in a case like that,” he said. “There's a real question about whether the defendant can afford to finance another trial.

“There are a lot of collateral consequences to jury misconduct — it's not a trivial matter at all.”

Monday, March 7, 2011

The D.C. government has shelled out more than $2 million in attorneys fees to lawyers representing former top D.C. police officials involved in a long-running lawsuit accusing them of ordering unfounded arrests of hundreds of protesters in 2002.

The tally came in a filing late Thursday in the District's federal court by lawyers representing four bystanders who were among those swept up and arrested in Pershing Park during demonstrations against the World Bank and the International Monetary Fund. "The District continues to seek to drive up costs and prolong litigation in this case," lawyers Daniel C. Schwartz and Jonathan Turley wrote in court papers, adding the city has "spared no expense" in defending former Chief Charles H. Ramsey and Assistant Police Chief Peter Newsham.

The government has already settled a class-action suit brought by the bulk of the nearly 400 protesters arrested in Pershing Park on Sept. 27, 2002, for $8.25 million -- just one of several expensive settlements reached by the District over bad arrests over the years. But the city was not able to settle with four bystanders arrested by D.C. police in Pershing Park and that legal fight has turned into an investigation led by a federal judge into why D.C. police either destroyed, lost or edited key pieces of evidence, including radio recordings, command logs and videotapes.

Last year, a federal judge heard testimony from 21 witnesses, including Ramsey and other top police officials, to account for the loss of that evidence. The investigation by U.S. Magistrate Judge John F. Facciola is on-going.

A spokesman for the Attorney General's office did not return a call seeking comment.

Taiyyaba Qureshi graduated from the law school at University of North Carolina -Chapel Hill last year bursting with ambition. She would soon be righting wrongs and improving people's lives. Her idealism knew no bounds.

But the job market had other plans. Nine months later, Qureshi is a lawyer without a full-time employer, the victim of a job market weakened by the recession. So she's cobbling together part-time assignments and has offered her fledgling legal expertise for free.

"We have this save-the-world complex, and we're so pumped and motivated," Qureshi said. "It's hard to reconcile the big ambitions with the reality that you can't put that dream into action."

The recession has hit law firms hard, experts say, particularly those tied closely to banking and other industries at the forefront of the economic collapse. The result has been a marked slowdown in offers for new lawyers and a dearth of the summer jobs that are critical for law students hoping to make initial contacts.

Though not totally immune to economic ebbs and flows, the legal industry has traditionally offered plenty of entry-level jobs to new attorneys. Many had work lined up long before graduation day, while law students often had their choice of summer jobs.

The recession changed the rules. Suddenly, government jobs dried up in the face of budget cuts, while private law firms scaled back or consolidated services and cut staff in response to lesser workloads.

"The law firm economics have changed drastically," said Stephen Zack, president of the American Bar Association. "You see major law firms disappear overnight. And as businesses and industries consolidated, so have their legal needs."

But these lean times don't mean there are too many attorneys, law school officials argue. Universities say they don't shrink enrollment when the job market tightens up, in part because of the lag time — law school takes three years — and in part because not all graduates become practicing attorneys.

"You're not just creating lawyers," said Linda Spagnola, North Carolina Central University's assistant dean for career services.

Some new grads are weighing whether to work for free in the legal field or find paying work temporarily doing something else. Though they need experience, many grads leave law school saddled with debt.

Qureshi feels lucky because she has no debt and her husband has a steady job. That has eased her stress over the past nine months, during which time she has done a two-month, unpaid internship and now earns $20 an hour doing part-time case work for two separate law firms.